Jairo Daniel Rodrigues v. State

Affirmed and Memorandum Opinion filed June 7, 2007 Affirmed and Memorandum Opinion filed June 7, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00739-CR ____________ JAIRO DANIEL RODRIGUES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1022349 M E M O R A N D U M   O P I N I O N Appellant, Jairo Daniel Rodrigues, appeals his conviction for murder and sentence of life imprisonment. In his first point of error, appellant argues that the trial court erred in allowing evidence of gang affiliation. In his second point of error, appellant challenges the legal and factual sufficiency of the evidence. We affirm. I. Background On the evening of October 18, 2004, the deceased, Franco Lopez, was visiting with a neighbor, Martine Chaparro, on the steps outside of Chaparro=s apartment. Two men approached Lopez and Chaparro, who was sitting in his wheelchair. The two men began shooting in Lopez and Chapparo=s direction, and then ran from the scene. Lopez was later pronounced dead from bullet wounds. At trial, three witnesses identified appellant as one of the shooters. Moises Hernandez, a friend of appellant, testified that appellant admitted to shooting an individual who was with a Aguy in a chair@ when the shootings occurred, and a transcript of an audio-recording of that conversation was read to the jury. Appellant=s sister and brother-in-law, whom appellant lived with, testified that appellant was at their apartment during the time of the shooting. The State also offered evidence of appellant=s affiliation with the AMS-13@ gang and Lopez=s affiliation with the rival ASouthwest Cholos@ gang. II. Analysis A. Admission of Gang-Affiliation Evidence In his first point of error, appellant contends that the trial court erred in admitting evidence of appellant and Lopez=s gang affiliation. We review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 379‑80 (Tex. Crim. App. 1990). We will not reverse a trial court=s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615. Appellant filed a pre-trial motion in limine objecting to any attempts by the State to offer evidence of appellant=s gang affiliation, and after a hearing on the issue, the trial court overruled such objections. Appellant also requested a running objection to any evidence regarding appellant=s or Lopez=s gang affiliation. At trial, the State offered testimony from several witnesses regarding appellant=s affiliation with the AMS-13@ gang and Lopez=s affiliation with the ASouthwest Cholos@ gang. Appellant more specifically argued at trial, and here on appeal, that the evidence was inadmissible under Texas Rules of Evidence 401, 402, 403, and 404. Rule 402 states that only relevant evidence is admissible. Tex. R. Evid. 402. Rule 401 defines relevant evidence as Aevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. Under Rule 403, relevant evidence Amay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@ Tex. R. Evid. 403. Rule 404 precludes the admission of character evidence to prove action in conformity with that character trait. Tex. R. Evid. 404. However, evidence of other crimes, wrongs, or acts by a person is admissible for purposes other than to show character conformity. Tex. R. Evid. 404(b). Evidence of gang affiliation is relevant to show a motive for a gang-related crime. Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002); Bradford v. State, 178 S.W.3d 875, 879 (Tex. App.CFort Worth 2005, pet. ref=d); Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). The State=s theory in this case was that appellant=s motive in committing the murder was gang-related. Brian Ritchie testified about a Aturf battle@ between the Southwest Cholos and the M-13 gangs. Moises Hernandez testified that appellant told him he was participating in a Awar@ with the Southwest Cholos gang in Houston, and that appellant killed a man because he was a Southwest Cholos gang member. This evidence, in showing tensions between the gangs, was offered to explain appellant=s motivation in killing Lopez. Therefore, the evidence tended to make a fact of consequence more probable. See Vasquez, 67 S.W.3d at 239; Beltran, 99 S.W.3d at 811. Thus, the evidence was relevant and admissible. See Tex. R. Evid. 401, 402. Furthermore, because the evidence of appellant=s gang affiliation was used to show motive, rather than to show that appellant acted in conformity with his bad character, the admissibility of that evidence was not limited by Rule 404. See Tex. R. Evid. 404(b) (AEvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive . . . .@ (emphasis added)); Vasquez, 67 S.W.3d at 239. Finally, we cannot say that the probative value of the evidence of appellant and Lopez=s gang-affiliation was substantially outweighed by the danger of unfair prejudice. See Vasquez, 67 S.W.3d at 240 (finding that any prejudicial effects stemming from evidence of the appellant=s affiliation with the Mexican Mafia did not substantially outweigh the value in showing motive for the murder committed); Beltran, 99 S.W.3d at 810‑11 (holding that evidence of appellant=s membership in a prison gang did not violate Rule 403 because it was Acritical to show the motive for his crime@ of murder); Chimney v. State, 6 S.W.3d 681, 699 (Tex. App.CWaco 1999, pet. ref=d) (finding that the probative value of evidence of gang misconduct was not substantially outweighed by the danger of unfair prejudice). Therefore, we hold the trial court was not outside the zone of reasonable disagreement in admitting the evidence. We overrule appellant=s first point of error. B. Legal/Factual Sufficiency We utilize the traditional standards in conducting our sufficiency review. Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2004) (legal sufficiency standards); Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (factual sufficiency standards). Appellant argues that, because there are Aserious issues raised . . . with regard to the credibility and reliability of the only two eyewitness identifications of the appellant,@ the evidence is both legally and factually insufficient. We disagree and find the evidence to be both legally and factually sufficient. At trial, three eyewitnesses identified appellant as one of the shooters. Martine Chaparro, who was in his wheelchair beside Lopez when the shootings occurred, testified that he recognized appellant during the shootings because, just two days before the shooting, appellant had inquired about Lopez=s whereabouts. Chaparro also identified appellant in a photo array a few months after the shooting. Both Jose Salorzano[1] and Reymundo Lopez[2] also identified (albeit tentatively) appellant as one of the shooters. Perhaps most persuasively, the State offered evidence of appellant=s admission to Moises Hernandez, a fellow MS-13 gang member turned FBI-informant, during an audio-recorded phone conversation that he had shot someone. Moises Hernandez testified as to appellant=s statements , and a translated transcript of the audio-recording made by Hernandez during his conversation with appellant was read to the jury. Although appellant did not state the name of the individual whom he killed during his conversation with Hernandez, appellant did say that Aa guy in a wheel chair@ was with the man he shot during the shooting. As mentioned earlier, Chaparro was next to Lopez in his wheelchair at the time of the shooting. Hernandez also testified that appellant stated in another (unrecorded) conversation that he shot the individual because he was a Southwest Cholo, and that he shot him multiple times with a .40 caliber gun. The State offered evidence that Lopez was a Southwest Cholo and that the casings found at the scene were .40 caliber. After viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that appellant shot Lopez. We therefore find the evidence to be legally sufficient. We also find the evidence to be factually sufficient. Contrary to the State=s evidence, appellant=s brother-in-law and sister testified that appellant was at their apartment (where appellant also lived) at the time of the shooting. Appellant also vigorously cross-examined all of the State=s witnesses, including those offered as eyewitnesses to the shooting. While some of the eyewitnesses seemed tentative in their identifications,[3] we defer to the fact-finder=s determination of the credibility of the witnesses. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); McKinny v. State, 76 S.W.3d 463, 469 (Tex. Crim. App. 2002). Furthermore, what weight to give conflicting testimonial evidenceCsuch as appellant=s alibi witnesses versus the State=s eyewitnesses and the taped confessionCis also within the sole province of the jury. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). After considering all of this evidence in a neutral light, we cannot say that it was so weak that the jury=s finding was clearly wrong or manifestly unjust; nor can we say that the verdict is against the great weight and preponderance of the evidence. We overrule appellant=s second point of error. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed June 7, 2007. Panel consists of Chief Justice Hedges and Justices Hudson and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] In reviewing the record, the exact location of Salorzano during the shooting is unclear. Salorzano testified that he watched two men walk from the parking lot towards Lopez, shoot in Lopez=s direction, and then run back to the parking lot. [2] Reymundo Lopez, Lopez=s brother who also lived with Lopez, was in the Lopez=s apartment when the shooting occurred. He testified that immediately after the shootings, he ran outside and observed two men running into the parking lot; he identified one of the men as appellant. [3] For instance, when asked to identify the shooter during trial, Salorzano pointed to appellant and stated, AI guess that will be him.@